Citation Nr: 18139633
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 16-19 310
DATE:	September 28, 2018
REMANDED
Entitlement to an initial rating in excess of 10 percent for service connected right shoulder superior labral anterior-posterior tear with arthritis from February 27, 2013 to March 18, 2013, and in excess of 10 percent since May 1, 2013 is remanded.
Entitlement to an initial rating in excess of 20 percent for right shoulder dislocation with guarding from February 27, 2013 to March 18, 2013, and as noncompensable from March 19, 2013 is remanded.
REASONS FOR REMAND
The Veteran had active service from June 2009 to February 2010.
A May 2014 rating decision granted service connection for right shoulder superior labral anterior-posterior tear with arthritis evaluated at 10 percent effective from February 27, 2013 to March 18, 2013 and evaluated as 10 percent since May 1, 2013. A temporary total evaluation was granted from March 19, 2013 to April 30, 2013. A March 2016 rating decision granted a separate evaluation for right shoulder recurrent dislocation with guarding evaluated at 20 percent disabling effective February 27, 2013 and as noncompensable effective March 19, 2013. 
1. Entitlement to an initial rating in excess of 10 percent for service connected right shoulder superior labral anterior-posterior tear with arthritis from February 27, 2013 to March 18, 2013, and in excess of 10 percent since May 1, 2013 is remanded.
2. Entitlement to an initial rating in excess of 20 percent for right shoulder dislocation with guarding from February 27, 2013 to March 18, 2013, and as noncompensable from March 19, 2013 is remanded.
The Board finds that further action is necessary before a decision can be reached on the merits of the Veteran’s claims. 
The appellate scheme set forth in 38 U.S.C. § 7104 (a) (2012) contemplates that all evidence will first be reviewed by the AOJ so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence unless this procedural right is waived by the Veteran. 38 C.F.R. § 19.31 (b)(1) (2018).
Here, however, after the issuance of an SOC in March 2016 in which it collectively addressed all the issues on appeal, the RO obtained evidence pertinent to the Veteran’s claims, in the form of records associated with his ongoing treatment at his local VAMC. The Board notes the March 2016 SOC and the March 2016 rating decision which granted separate service connection for the Veteran’s right shoulder dislocation noted that no VA outpatient treatment records were available for review. Several VA medical treatment records relevant to the claims on appeal dated from February 2013 to June 2018 are associated with the record. To date the RO has not prepare an SSOC which considers this evidence, and no waiver of RO review of these documents or withdrawal of the appeal of these issues has been submitted by the Veteran. Therefore, as the identified evidence of record may be pertinent to the Veteran’s claims, on remand the AOJ must review the above-identified evidence, along with any other examination or treatment records from any facility associated with the record, and issue a new SSOC on these claims.
The matter is REMANDED for the following action:
1. After procuring the appropriate release of information forms where necessary, obtain outstanding relevant VA records as well as any pertinent private medical records and associate all such available documents with the Veteran’s claims file. All attempts to obtain these records must be documented in the claims file.
2. Then re-adjudicate the issues on appeal, to include consideration of the additional evidence obtained since it last adjudicated these claims. Specific consideration must be given to all evidence received since the last SOC issued in March 2016. The Veteran must be afforded an opportunity to respond before the record is returned to the Board.

 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Peden, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.